Barry Dolin v. Asian American Accessories Inc

449 F. App'x 216
CourtCourt of Appeals for the Third Circuit
DecidedOctober 28, 2011
Docket10-4054
StatusUnpublished
Cited by6 cases

This text of 449 F. App'x 216 (Barry Dolin v. Asian American Accessories Inc) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barry Dolin v. Asian American Accessories Inc, 449 F. App'x 216 (3d Cir. 2011).

Opinion

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Barry Dolin appeals from the April 17, 2010, order of United States District Court for the Eastern District of Pennsylvania dismissing his claims for lack of subject matter jurisdiction. After reviewing the parties’ contentions, we conclude that Do-lin has not met 28 U.S.C. § 1332’s amount in controversy requirement for federal diversity jurisdiction. We will therefore affirm the judgment of the District Court.

I.

Because we write primarily for the parties, who are familiar with the facts and the proceedings in the District Court, we will revisit them only briefly. Dolin had a sales commission agreement with Asian American Accessories (“AAA”), the terms of which entitled Dolin to a five-percent commission on sales of belts and wallets to Dolin’s customers.

Dolin brought a breach of contract action for commissions that AAA allegedly owed him for his merchandise sales. Importantly, Dolin expressly identifies in his complaint only two customer accounts for which he seeks commissions: M. Aron and Swank, Inc. See App. 00019. No other account is named in the complaint, nor is any recovery sought besides recoupment of his contractual commissions at five percent.

On December 2, 2009, the District Court granted partial summary judgment against Dolin. Concluding that no genuine issue of fact existed regarding whether Dolin deserved commissions from AAA “on sales [Dolin] admitted he did not generate,” the Court dismissed all of Dolin’s claims for commissions related to Swank, Inc. See App. 00571, 00626. With the Swank commissions no longer in contention, the District Court noted that “the only genuine *218 dispute” involved the M. Aron account. Dist. Ct. Order, Apr. 9, 2010, ECF No. 56. Sales to M. Aron during the time relevant here totaled $759,804.74. Id. AAA paid commissions from those sales to another employee, Scott Weiner. Id.; App. 00676. Because total possible commissions that Dolin might collect from the M. Aron account came to less than $40,000 1 the District Court ordered the parties to brief the issue of subject matter jurisdiction.

In response, Dolin submitted an affidavit that baldly alleged damages exceeding $100,000, without substantiation or explanation. See App. 00749-00751. This amount is inconsistent with Dolin’s complaint and his sworn testimony during discovery. The affidavit identified no additional customers from whose sales Dolin sought commissions. Accordingly, the District Court dismissed Dolin’s claim with prejudice for lack of jurisdiction on September 17, 2010. Dolin timely appealed.

II.

We have appellate jurisdiction over the District Court’s dismissal under 28 U.S.C. § 1291. We review a District Court’s determination of its jurisdiction de novo. See Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d Cir.2007). If the District Court makes factual findings in determining jurisdiction, we review them for clear error. See Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir.1998). We will not disturb the District Court’s factual findings unless its determinations “either (l)[are] completely devoid of minimum evi-dentiary support displaying some hue of credibility, or (2) bear[] no rational relationship to the supportive evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972).

To invoke our diversity jurisdiction, a controversy must be between citizens of different states, and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a)(1). Whether diversity jurisdiction exists is determined by examining “the facts as they exist when the complaint is filed.” Newman —Green, Inc. v. Alfonzo —Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Grand Union Supermarkets, of the V.I., Inc. v. H.E. Lockhart Mgmt., 316 F.3d 408, 410 (3d Cir.2003). We discern the amount in controversy by consulting the face of the complaint and accepting the plaintiffs good faith allegations. See Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961); Frederico v. Home Depot, 507 F.3d 188, 194 (3d Cir.2007). “[Ejstimations of the amounts recoverable must be realistic.” Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 403 (3d Cir.2004). “The inquiry should be objective and not based on fanciful, pie-in-the-sky, or simply wishful amounts, because otherwise the policy to limit diversity jurisdiction will be frustrated.” Id. (quotation marks omitted). We will therefore dismiss a case for failure to meet the amount in controversy requirement, if, from that face of the complaint, it is a “legal certainty” that the plaintiff cannot recover $75,000, or if, from the proofs, it appears to a legal certainty that the plaintiff is not entitled to that amount. Frederico, 507 F.3d at 194; St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

III.

The face of Dolin’s complaint binds our inquiry. See Frederico, 507 F.3d at 194. The face of the complaint here reveals that the only accounts with commissions in con *219 tention are Swank and M. Aron. The District Court properly disposed of Dolin’s Swank claims. Indeed, Dolin conceded in his deposition that he played no role in producing sales from Swank, see App. 00473-00474, 00493, and he had actual notice of AAA’s decision to remove Swank from Dolin’s customer list long before Swank entered into any transactions with AAA, see App. 00137-00139. We similarly disregard the Swank claims as meritless. The only controversy before us, therefore, involves damages arising from the M. Aron account.

After reviewing the record, two considerations lead us to the inexorable conclusion that the District Court correctly determined that the amount in controversy misses the jurisdictional mark. First, AAA salesperson Scott Weiner — not Do-lin — sold products to M.

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449 F. App'x 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-dolin-v-asian-american-accessories-inc-ca3-2011.